The demurrer to the bill, alleging want of jurisdiction, was, therefore, overruled, without prejudice to any question, and leave to answer granted.

Coming before the Supreme Court again upon its merits,26 the United States, on leave, filed a petition of intervention, asserting that the amount of the flow of water of the river in question was subject to federal authority and control, as incidental to its duty of legislating for the reclamation of its arid lands owned by it. This claim the court refused to recognize.27

26 Kansas v. Colorado, 206 U. S. 46; 27 Sup. Ct. Rep. 655; 51 L. ed. 956.

As regards the jurisdiction of the court, the opinion declares that, generally speaking, "when the judicial power of the United States was vested in the Supreme and other courts, all the judicial power which the nation was capable of exercising was vested in those tribunals; and unless there be some limitations expressed in the Constitution it must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the nation, no matter who may be the parties." Section 2 of Article III providing that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, etc., is declared to be "not a limitation nor an enumeration," but "a definite declaration - a provision that the judicial power shall extend to - that is, shall include -the several matters particularly mentioned, leaving unrestricted the general grant of the entire judicial power."

27 After reviewing the doctrines that had been put forward by counsel for the United States, that "all powers which are national in their scope must be vested in the Congress of the United States," the court declare:

"At the time of the adoption of the Constitution, within the known and conceded limits of the United States there were no large tracts of arid land, and nothing which called for any further action than that which might be taken by the legislature of the State in which any particular tract of such land was to be found; and the Constitution, therefore, makes no provision for a national control of the arid regions or their reclamation. But, as our national territory has been enlarged, we have within our borders extensive tracts of arid lands which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the National Government. But, if no such power has been granted, none can be exercised. It does not follow from this that the National Government is entirely powerless in respect to this matter. These arid lands are largely within the territories, and over them, by virtue of the second paragraph of section 3 of article IV, heretofore quoted, or by virtue of the power vested in the National Government to acquire territory by treaties, Congress has full power of legislation, subject to no restrictions other than those expressly named in the Constitution, and, therefore, it may legislate in respect to all arid lands within their limits. As to those lands within the limits of the States, at least of the Western States, the National Government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation. While arid lands are to be found mainly, if not only, in the Western and newer States, yet the powers of the National Government within the limits of those States are the same (no greater and no less) than those within the limits of the original thirteen; and it would be strange if, in the absence of a definite grant of power, the National Government could enter the territory of the Mates along the Atlantic and legislate in respect to improving, by irrigation or otherwise, the lands within their borders. Nor do we understand that hitherto Congress has acted in disregard to this limitation."

This language seems very broad, and the author is not sure how comprehensive a doctrine is intended to be declared. It would seem, however, that the position is taken, that the Federal Government is equipped with judicial power extending wherever persons or property can be reached by the processes of its courts. It would appear, therefore, that the court based its jurisdiction not so much on the clause of the Constitution specifically extending its jurisdiction to controversies between two or more States, as on the general statement in Section 1 of Article III that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." "By this," the court declare, "is granted the entire judicial power of the nation." 28 tional law, and thus to build up what may properly be termed an interstate common law.29

Having held that the original jurisdiction of the Supreme Court extends to the controversy at issue between the States of Kansas and Colorado, the court turns to a consideration of the merits of that controversy and to the law applicable thereto. As to the law to be applied the court held itself to be bound by the law of neither State, but that, as it had been declared in the case when upon demurrer, "sitting, as it were, as an international, as well as a domestic tribunal, we apply federal law, state law, and international law, as the exigencies of the particular case may demand." In short, in all cases where the common law of the States is not in agreement or adequate, the Supreme Court asserts its right to apply principles, drawn either from federal or interna-

28 See, contra, Cohen v. Virginia, 6 Wh. 264: 5 L. ed. 257; Martin v. Hunter's Lessee, 1 Wh. 304; 4 L. ed. 97; Robertson v. Baldwin, 165 U. S. 275; 17 Sup. Ct. Rep. 326; 41 L. ed. 715.